Many employers struggle to construct drug and alcohol policies in a legal weed world. This article from JDSUPRA is an excellent read. We have provided a summary of the article below. We recommend reading the article in its entirety.
Employees in positions that are subject to federal drug laws should be handled in accordance with the applicable federal regulations.
Step One: Know your jurisdiction(s). The laws relating to use of drugs (and, to a lesser degree, alcohol) are changing constantly, especially where use of marijuana and cannabis are concerned.
The applicable laws will normally be the laws in the states where your employees work.
And it’s not just drug laws that vary from state to state. Many states also have their own disability rights laws. If an employee is legally using medical marijuana to treat a medical condition, then he or she may be protected from discrimination and may be entitled to reasonable accommodation under state law.
Step Two: Determine whether any of your jobs are “safety-sensitive,” and, if so, which ones. “Safety-sensitive” can include people who operate heavy or dangerous machinery, and also white-collar sales representatives who are required to drive as part of their jobs. There are plenty of other jobs where impairment could endanger the employee, the employee’s co-workers, or the general public.
Step Three: With safety-sensitive jobs, decide what you want to do in the way of drug/alcohol testing, and (if the employee is in a state where marijuana use is legal) what you want to do about marijuana. A good general recommendation if you have employees in a jurisdiction where recreational use is legal is to treat marijuana use the same way you would treat alcohol use.
Marijuana is more complicated because it stays in the body a long time, meaning people can test positive when they are no longer “impaired.”
Step Four: Decide how aggressive you want to be with employees in non-safety-sensitive jobs. Yes, you can have one set of substance abuse policies for employees in safety-sensitive jobs and another set for everybody else.
Step Five: Decide how you want to handle employees who test positive. Do you want to take a hard line and fire them the first time they’re caught? In many states, you can do that – but not all. (See Step One again.) Or, do you prefer to allow them to go through an Employee Assistance Program, at least after a first positive result? In my experience, most employers allow one shot at an EAP if the employee signs a Last Chance Agreement. If the employee ever tests positive again, that’s usually it.
Step Six: Realize that alcohol is in a class by itself from an ADA standpoint. Alcohol addiction, even with current use, is a “disability” within the meaning of the Americans with Disabilities Act, meaning that employers cannot discriminate against employees based on alcoholism and also have to make reasonable accommodations on a limited basis.
The ADA does not protect “current users of illegal drugs,” even if they are currently addicted. However, drug addicts who are no longer current users are considered persons with disabilities. So they are protected from discrimination and should also be allowed time off as needed to continue their treatment.
Step Seven: If your employees are in a state where marijuana use is still illegal . . . You may still have state laws that apply to drug testing, and you’ll want to comply with those.
Step Eight: If your employees are spread among states where recreational marijuana is legal, where medical-only is legal, and where marijuana is illegal here are your options: (1) Comply with the most pro-marijuana law that applies, which means you’d be treating all of your employees as if recreational use is legal. The benefit is that you have a single standard that applies to everybody. That could minimize employee perceptions of unfairness, and it also could make your life a lot simpler.
The downside is that you can’t be as strict with marijuana use as you legally have the right to be. (2) Apply the applicable law to each employee, which means you’d be most lenient with the employees in recreational states, medium-lenient with the employees in medical-only states, and relatively strict with the employees in “illegal” states. The benefit of this is that you are not tolerating more use of marijuana than you absolutely have to. The downsides, of course, are perceptions of unequal treatment among your employees, and administrative headaches for you.
Step Nine: Don’t forget about legal medications. You may have an applicant or employee who tests positive or is impaired on the job because of legal use of prescription medications, legal use of medical marijuana, or legal use of over-the-counter medications. If that’s the case, the individual may be legally protected and may be entitled to reasonable accommodation.
To use an example that involves neither marijuana nor alcohol, let’s say Melvin, a welder with degenerative disc disease, is taking prescription opiates for the pain. Melvin in all likelihood has a “disability” within the meaning of the ADA based on his degenerative disc disease. Assuming welding is a safety-sensitive position, and that the opiates impair him enough to create a safety risk, then the employer may need to remove Melvin from his regular job duties, at least temporarily. This could include temporarily transferring Melvin to a non-safety-sensitive position.
In substance abuse policies, I normally include a provision that requires employees to notify Human Resources or another appropriate person in the company if they are taking any legal medications that could create a safety issue or impair the employee’s ability to competently perform the duties of the job.
Step Ten: Be sure to consult with qualified employment counsel when determining the laws that apply to your employees, deciding what you’re going to do, and drafting and enforcing your substance abuse policies.
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at Randisiandassociates.com
